Federal judge asks prosecutors to put a price on child porn

Article by: JAMES WALSH

Star Tribune

January 5, 2010 - 9:46 AM

She goes by the name of "Amy," and the photos her uncle took of her a decade ago -- when she was 8 or 9 years old -- are among the most widely circulated series of child pornography images in the United States.

Now her fight for damages from those who possess or distribute those photos is emerging as a big issue in federal courtrooms across the country. Including here.

The question is: How much can one offender possessing any of the millions of images circulating on the Internet be expected to pay to any of the thousands of victims worldwide? Amy is seeking a total of more than $3.3 million.

On Monday, Judge Patrick Schiltz in U.S. District Court in St. Paul issued an order demanding to know why restitution was not even requested by the U.S. attorney's office in the case of a Minnesota man who pleaded guilty to possession of child pornography.

Schiltz said Congress has made it clear that restitution for child porn victims must be considered. A request for restitution for a victim in a case here -- probably Amy -- was included in the pre-sentence report for Brandon Anthony Buchanan. Yet, in Buchanan's case, as well as in a number of other local child porn cases, Schiltz said that the U.S. attorney's office has been mute on the issue of restitution.

"The Court will no longer accept silence," Schiltz said in his order filed Monday. He said the U.S. attorney must submit a memorandum by Jan. 29 explaining why the victim is not entitled to restitution.

Schiltz said he could not talk about the case because it is ongoing. Neither can the U.S. attorney's office, said a spokeswoman.

When asked about the issue of restitution in child pornography cases, First Assistant U.S. Attorney John Marti said: "This is an emerging issue and one we are looking at very closely. We will seek restitution in those cases where we believe it is appropriate and authorized by law."

Emerging legal issue

Paul Cassell, a law professor at the University of Utah and a former federal judge, said "this is an issue that's percolating around the country."

"We know that when a little girl has pictures taken of her and they are disseminated around the country, it continues to harm her," Cassell said. "The question is, how much does any particular offender contribute to that harm? Is it fair to hold one offender accountable for all those images?"

Cassell, who is also an attorney for the National Crime Victims Law Institute, based in Portland, Ore., and has filed briefs in support of Amy's case, said it is. The law allows a single offender to pay the price, Cassell said.

Spreading the financial pain to other offenders is "up to the offenders to sort out," he said.

But, according to a number of restitution rulings across the country, the courts are not of one mind on the issue.

In dozens of cases involving Amy and another victim over the past couple of years, some courts have awarded large sums. Some have awarded only a few hundred dollars here and there. Some have denied any restitution at all -- saying it is impossible to determine how much financial responsibility any single offender bears.

Yet, a ruling handed down Dec. 21 by the 5th U.S. Circuit Court of Appeals in Texas stated that the courts don't have to come up with an exact way to apportion blame for a victim to be entitled to restitution.

"Congress intended to afford child victims ample and generous protection and restitution, not to invite judge-made limitations patently at odds with the purpose of the legislation," the appellate court wrote. It ordered a lower court to reconsider Amy's request.

At the forefront

Amy, who has an attorney making restitution claims on her behalf all over the country, is a vanguard on the issue, Cassell said.

"Every day, she wakes up with another notice from another court that another offender is viewing another image of her," he said. "Imagine what that does."

Most prosecutors want to put the bad guys behind bars and move on, Cassell said. Many think it will be too time-consuming and complicated to calculate restitution in addition to prosecuting offenders, Cassell said.

But, if more of Amy's requests for restitution hold up, he said, those excuses will go away and Amy can begin to find peace.

She will also inspire more victims to step forward.

According to the Alexandria, Va.-based National Center for Missing and Exploited Children, officials have analyzed more than 28 million child porn images since 2002, and more than 8 million since the start of 2009. In all, they have identified more than 2,600 victims of child pornography, victims whose images -- like Amy's -- are destined to circulate for years and years.

It is not a stretch that if Schiltz's stance requiring restitution requests becomes the norm and not the exception, the effect could be profound, Cassell said.

"Judge Schiltz has done something courageous here, standing up for someone who often doesn't have a voice in this process," he said. "The government has been trying, to some extent, to have this problem go away."